The comprehensive guide to probate, trusts, estate planning, and inheritance litigation.

How to File a Lawsuit Against an Estate in Florida

There are several types of ways to sue an estate, under Florida law.

1.  Creditor Claim Against the Estate.

To file a creditor claim against an estate, the claimant must first file a creditor claim inside the probate estate.  The creditor claim must be filed in a timely manner.  The latest that a creditor claim can be filed is two years from the date of death of the decedent.  An earlier deadline could apply.  If a Notice of Creditors is published in the local newspaper, creditors have a three month deadline to file a creditor claim in the probate estate.  

A creditor that is reasonably ascertainable is supposed to be sent a Notice to Creditors. That Notice will give the potential creditor 30 days within which to file the creditor claim inside the probate estate.  

A common dispute arises for creditors (i) who file after the three month period that starts from publication of the Notice to Creditors, but (ii) who attempt to file prior to the absolute two-year deadline for filing a creditor claim.  Under Florida law, if the creditor was “reasonably ascertainable” to the personal representative but did not receive a mailed copy of the Notice to Creditors, the creditor can petition the probate court to file a late claim.  The probate court will then determine whether or not the claim can be filed late.

After the timely filing of a creditor claim (or permission is granted to file the creditor claim late), the personal representative of the probate estate has 30 days within which to object to the claim.  If an objection is filed, the creditor has 30 days within which to file the “independent action” against the estate.  The “indipendent action” is a lawsuit filed in the circuit court against the estate wherein the creditor attempts to prove up its claim.

Many types of attempted recoveries can be brought against a probate estate through this creditor claim / independent action process, including the following:

  • Debts of the decedent, including unpaid mortgages, medical debt, and credit card debt
  • Contract claim against the decedent
  • Tort claims against the decedent, such as damages for a car accident
  • Unpaid alimony
  • Unpaid child support
  • Breaches of a marital agreement or divorce agreement or separation agreement
  • Guarantees on notes
  • Agreements to make a will or provide a bequest

2.  Breach of Fiduciary Duty By the Personal Representative. 

If the personal representative administering the estate is doing a bad job, he or she can be sued in the proabte court for breach of fiduciary duty.  

The personal representative of the probate estate is a fiduciary who owes the beneficiaries of the estate certain duties that must be observed.  These include the duty to administer the estate efficiently, fairly, and honestly.  The personal representative must also avoid engaging in self dealing transactions that are not otherwise discosed to the beneficiaries. 

3.  Challenge to the Validity of the Will.

Any interested person can seek to challenge the validity of the will, before or after tie admission of the will to probate.  There are a number of grounds that can be asserted, including the following:

  • Lack of proper formalities in the execution of the will
  • Lack of capacity when the will was executed
  • Undue influence asserted on the testator
  • Insane delusion
  • Estate fraud

Complete Guide to Florida Probate

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